Relying on gumption

Courtesy:-  Malik M Ashraf

The ruling by the Speaker National Assembly that no question of disqualification of the Prime Minister had arisen as a consequence of his conviction by the SC in the contempt of court case, has stirred up yet another furious debate on the legitimacy of the conclusions drawn by her. The opponents of the government and the section of the media essentially hostile to the government are shouting at the pitch of their voices dubbing her decision as partisan and against the constitution that might pit the parliament against the judiciary, whereas the permeating view in the government circles is that the speaker has used her constitutional powers under article 63(2) to giver her verdict and it has resolved the matter for good. The conflicting view taken by the two sides are quite understandable in the backdrop of an ambience of confrontation reminiscent of the crass politics of nineties.


However what makes the issue more convoluted and confusing is that even the constitutional experts are also divided on the issue. Some believe that the Speaker has stalled the due constitutional process as required under article 63(2), meaning thereby that the case should have been referred to the Election Commission to take the final decision. The others have expressed the view that since the Prime Minister was not charged for any offence under 63(1)(g) he could not be convicted under that article. The Speaker therefore was right in concluding that his case did not fall within the purview of article 63(1)(g). They also argue that since article 63(2) gives the powers to the speaker to decide whether a question of disqualification has arisen or otherwise, without actually mentioning under what circumstances or on what grounds she could make such a decision, the verdict given by her is very much in conformity with the constitution and as such cannot be called into question.

Since the common people do not understand the complicated and technical intricacies of the constitutional matters, it would perhaps be pertinent to untie some of the knots by relying on gumption because common sense always makes sense. It is a settled principle of law and also a matter of common sense that a person can only be convicted for the offence he has been indicted for. The fact of the matter is that in this particular case, the charge sheet issued against the Prime Minister did not accuse him of defaming or ridiculing the judiciary but the verdict given by the SC laid more stress on this particular point which clearly negates the settled principle of law. If the judiciary felt that the Prime Minister had resorted to defaming or ridiculing the judiciary it should have included these charges in the statement of indictment or instituted a separate case for this offence and given him the opportunity to defend those charges in a proper manner. The inability of the court to resort to this legal course and the violation of the settled principle of law, does raise many questions as to whether the Prime Minister was given a fair trial or not?

The argument that the Speaker has stalled the due constitutional process by not sending the reference to the Election Commission to determine the question of disqualification of the Prime Minister does not hold its ground even on cursory scrutiny of article 63(2) under which the Speaker has given her verdict. It reads “If any question arises whether a member of Majlis-e-Shoora (Parliament) has become disqualified from being a member, the Speaker or, as the case may be, the Chairman shall, unless he decides that no such question has arisen, refer the question to the Election Commission within thirty days and should he fail to do so within the aforesaid period it shall be deemed to have been referred to the Election Commission”. The subscribers to the view that the matter should have been sent to the Election Commission probably assume that after the conviction by the Supreme Court the matter automatically fell under the jurisdiction of the Election Commission. It is a wrong notion and belies their lack of understanding of the relevant article and the powers conferred by it on the Speaker. The article as we see is very clear about the role of the Speaker. The speaker is supposed to send the reference to the Election Commission within thirty days only in case she decides that a question of disqualification has indeed arisen. And if the Speaker decides otherwise, it is her constitutional prerogative not to send the reference at all. In this particular case the Speaker has held the view that no question of disqualification has arisen, so her action is very much within the ambit of the constitution and her actions have indeed allowed the constitutional process to unfold. The other point that strengthens the position of the Speaker is that the article does not prescribe the reasons or factors that the speaker should take into consideration in regards to deciding whether a question of disqualification has arisen or not. Ostensibly the constitution gives her discretionary powers to decide the question.

The speaker in her arguments in arriving at the verdict also seems to have relied on the settled principle of law that a person can only be convicted of the offence for which he has been charged. Since the facts are to the contrary, the speaker was right in interpreting the court proceedings the way she did. Therefore, invoking the applicability of article 63(1) (g) does not seem fair. The Supreme Court did not have the constitutional powers to disqualify the Prime Minister and the question ultimately had to be decided by either the Speaker or the Election Commission under article 63(2). The speaker has used her constitutional powers and there is nothing wrong about it from the constitutional perspective. The critics and detractors of the government who are crying horse from every convenient roof-top to uphold the constitution need to prove their credentials by supporting a constitutional action rather than interpreting the verdict through the prism of their own political objectives.

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